16 October, 2021

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How 1978 JRJ Constitution & The 20th Amendments Continue To Rot Sri Lanka

By Asoka Seneviratne

Asoka Seneviratne

Former US President and Harvard constitutional scholar, Barak Obama once famously said Democracy is a messy and a complicated process and rightly so too. As a globally respected Nobel Prize winner and a whole lot more feathers in his cap, his words carry a great deal of weight.

Why should Democracy by design be complicated? Here is why. Power is potentially dangerous. Absolute power is definitely dangerous. World has witnessed the action of those who exercised absolute power such as Adolf Hitler, Saddam Hussein, Muammar Gaddafi and Augusto Pinochet. There are many more who simply loved absolute power, ours included. They murdered tens of thousands if not millions of their own countrymen with impunity. They all demanded absolute power to better people’s lives and unsuspecting populace gave it to them. The end result was tyranny, misery, social unrest and poverty.

So what did Obama mean when he said Democracy is complicated? Let’s take the case of Democracy in Obama’s America. A US President cannot spend any money that has not been approved by both houses of the US Congress. Power of the purse lies within the Congress. If any US President carries out a function that is unlawful or unconstitutional, such can and have been challenged in the courts successfully and the Presidents has had to back down. For example during the first two years of President Trump’s administration, American courts stuck down over 60 executive and other orders that were either illegal, unconstitutional or Trump lacked power to do so. Again executive power is checked by an independent judiciary.

These are the vital but complicated checks and balances that protect nations from executive /government abuse and overreach.

1978 JRJ Constitution and its latest amendment, 20th A does away with much of these needed checks and balances in a subtle manner. Ability to purchase MP’s votes with cash is huge. That is also how SLPP and Gotabaya Rajapaksa managed to pass 20th A. By the way JRJ bragged that his constitution is here to stay as no party will ever get a 2/3rd but foolishly forgot one can bribe MP’ s to make up a 2/3rd. Instilling fear on MP’s by threatening to expose or their prosecute their corruption is another method to win their votes. By the way prosecution of MP’s or a member of the public is not a legal  Executive function at all but JRT silly constitution and 20th A permits President to pressure the judges in directly thus circumventing judicial independence. The AG or the police chief can be fired by the President if he or she does not toe his or her line. Appointing ministers from within the parliament (so called Cabinet) negates the independence of those MP’s. The party leader having direct influence over who runs from the party at the polls so as MP s not to cross leader’s path. Here is where primary electoral process comes into play like in the US. So the MP is unable to vote his conscience. In short in our constitution the President can virtually do whatever he or she wishes.

The most recent example of this ugly fact is the appointment of convicted murderer (upheld by the Supreme Court) Duminda Silva to public office, as well as appointment of totally ill qualified brother of the President to head the Finance. The constitution does not lay down pre requisites for these key appointments nor approval from the legislature.

It is also due to these lack of checks and balances that MR and was able to single handedly change the way we borrow and opted for risky sovereign bond auctions. No national and legislative l debate or approval, no consultation with independent scholars was required. All what was required was his decision to do so.

Due to the breakdown of checks and balances I mentioned earlier, MR was able to singlehandedly invest on non-sustainable  foolish investments  such as Hambantota Airport, Port, Convention Centers and the like, Nelumpokuna, Speedways, Mihin Air etc. Sirisena/Ranil government is not off the hook but at last the duo dismantled some of the excess powers of the president and created a more democratic framework for high public appointments through the 19th A. The people do not give enough credit to Sirisena for letting go his powers. You think MR or Gota would do this? I am not at all implying that they ran a clean administration. Far from it!

And so today, bonds are maturing and we are broke enough not to be able to honor payments. Yes Covid is a main factor and that is why we need to always maintain our buffer reserves. Imports have been severely curtailed including essential staples. Forex reserves are hitting the rock bottom to the point we have trouble meeting our basic energy needs. Let’s hope the public will still be able to buy their bottle of cooking gas.

Curtailing imports and shortage of Forex brings with the possibility of a thriving black market. Soon the black market will likely be a good place to shop rather than the legal market place. Remember Sirimavo in the 70’s? The prices of everything imported ranging from a cellphone, motorbike to basic car will skyrocket.

The net loser of all this is the average Lankan. His or her standard of living further goes down. The poor will get into gutter. But the Party in power, its henchmen, and kith and kin will continue to be chauffeur driven in luxury motorcades. If this is not a classic third world scene, what is? Sad indeed.

All because our constitution lacked checks on executive power. A foolish leader makes foolish investments with borrowed billons and the country falls apart.

Often we hear people say, we need selfless and patriotic leaders and lack of that is why where we are today. This is a meritless argument. Selfless or patriotic leaders can come dozen but absolute and unchecked power will Corrupt. Remember “Saubaghayaye Dekma? Absolute power corrupts absolutely, like Abraham Lincoln famously said. We need to scrap 1978 along with the 20th Amendment wholesale and introduce a smart constitution with proper checks and balances along with the three co-equal branches and restore our democracy and its precious institutions. This noble function should never be left to the e two main parties. Their record disqualifies them hands down.

Anything less will continue to rot our once admired and beautiful country.

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Latest comments

  • 8
    5

    Asoka Seneviratne,
    Your sentiments are valid; Not the rationale.
    Constitution is just a garland. You cannot give it to a monkey and expect it to adorn you!

  • 8
    1

    Asoka, it is our own people who gave ultimate power to these criminals and enabled the rot. So do not blame the criminals alone. Yes the poor will get into the gutter, but then again, that is what they wished for and they truly deserve it. Have you heard of public giving the keys of a bank vault to looters so that can get away with their whole savings. If this is not classic third world scene then what is it ?? it is called world like no other, miracle of Asia, vistas of prosperity and splendor.

  • 7
    1

    JRJ Constitution gave us dictatorship, PTA, War, Militarisation, and now Family kingdom.
    Outcome: Massacre of civilians, destruction of economy, collapse of law and justice, corruption at high level and rule of Criminals.

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